E-Brief Sept - Oct - The Advocates' Society

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(Continued from page 7)Shaun Nakatsuru of the Ministry of theAttorney General, Crown Law Office,Constitutional, has been appointed tothe Ontario Court of Justice, assignedto Toronto.Wolfram Tausendfreund of O’FlynnWeese Tausendfreund LLP has beenappointed to the Superior Court ofJustice, assigned to London.Julie Thorburn of Cassels Brock &Blackwell LLP has been appointed tothe Superior Court of Justice, assignedto Toronto.Andrea Tuck-Jackson of CooperSandler & West has been appointed tothe Ontario Court of Justice, assignedto Toronto.A Rare OpportunityOur December 4 gala with awardwinningdirector NORMAN JEWISONisn't just a fund raiser for the SirWilliam Campbell Foundation, it's anopportunity for a very special eveningwith your mostimportantguests. A numberof firms arebooking multipletables and usingthis event as aclient appreciationevening.Special guests at the Society’s End of Term Dinner in June, seated, left to right, arethe Honourable Regional Senior Justice John Payne and the Honourable AssociateChief Justice Annemarie Bonkalo of the Ontario Court of Justice; The HonourableMichael Bryant, Attorney General of Ontario; The Honourable Roy McMurtry, ChiefJustice of Ontario; The Honourable Douglas Cunningham, Associate Chief Justiceof the Superior Court of Justice; The Honourable Associate Chief Justice DonaldEbbs of the Ontario Court of Justice; Sandra Forbes of Davies Ward Phillips &Vineberg LLP; Martha Pilkington of Barrack & Pilkington, and Gavin MacKenzie,Treasurer of the Law Society of Upper Canada. Standing, left to right, are PeterCronyn of Nelligan O'Brien Payne LLP; The Honourable Warren Winkler, RegionalSenior Justice, Toronto Region, of the Superior Court of Justice; The Hon. RobertRae, Q.C., of Goodmans LLP (keynote speaker); Michael Eizenga of Siskind,Cromarty, Ivey & Dowler LLP; The Honourable Dennis O’Connor, Associate ChiefJustice of Ontario; Linda Rothstein and Ian Roland of Paliare Roland RosenbergRothstein LLP; Michael Barrack of McCarthy Tétrault LLP; Marie Henein of Henein& Associates, and The Honourable Chief Justice Brian Lennox of the Ontario Courtof Justice."The Artist as an Advocatefor Justice"Monday, December 4, 2006Fairmont Royal York Hotel, TorontoGala Reception ~ 6:00 p.m.Dinner ~ 7:00 p.m. Black TieEnjoy an evening of cinematic glamour,as the internationally celebrateddirector Norman Jewison presents aretrospective of five of his films thatshare themes of advocacy and socialjustice: The Russians Are Coming,the Russians Are Coming (1966), Inthe Heat of the Night (1967), ... AndJustice for All (1979), A Soldier'sStory (1984), The Hurricane (1999).TICKETS & INFORMATION416-597-0243 x.113Members of the Young Advocates’ Committee with the Society’s president, left toright: Adrian Lang and Emily Smith of Stikeman Elliott LLP; John Polyzogopoulosof Blaney McMurtry LLP; Alexa Abiscott of Goodmans LLP; David Messam ofLawson, McGrenere LLP; Michael Barrack of McCarthy Tétrault LLP; Martha Cookof Stockwoods LLP; Adrienne Woodyard of Lerners LLP; Paul Rand of OgilvyRenault LLP; Kimberly Morris of Woolgar VanWiechen Ketcheson Ducoffe LLP, andPatricia Latimer of Stockwoods LLP. (Photos: Eya Donald Greenland) 8VOLUME 18, NO. 1, SUMMER 2006
LITIGATION TIPS & TRAPS: “Southren” StyleBy Jane Southren, Lerners LLPAs promised in the last issue, I am happy to report that there is, in fact, one more creativeway of getting U.S. style deposition evidence from U.S. residents for purposes ofOntario proceedings! And we don't even have to conduct the examination; all the workis done for us. There are a few hitches, though. and Bryce Rudyk, a newly mintedlawyer in the Transnational Law Group at Lerners LLP, tells us all about them in thefollowing column.INTERVENING IN AMERICAN PROCEEDINGS FOR THE PURPOSE OF SHARINGDISCOVERYBy Bryce Rudyk, Lerners LLPOntario litigators often do (or should) salivate over the evidence obtained from thebroad discovery rights that are granted in American proceedings. Not only areAmerican litigants allowed to discover almost anyone -- no matter how tangentiallyBryce Rudykrelated the witness might be to the proceeding -- but also there is no deemed undertakingrule as there is in Ontario (Rule 30.1) limiting the use of the evidence collected.It is therefore possible to obtain evidence from one action and use it in another unrelated action. As a result, many Americanactions are now governed by Protective Orders, which although not surrogates for the deemed undertaking rules, nonetheless limitaccess to discovery materials -- the scope of protection depending on the specific Protective Order in each case.Traditionally, where a pending or completed American action was governed by a Protective Order, an Ontario litigant obtained evidencefrom that action through a Letter of Request (a.k.a. a Letter Rogatory in most American states and formerly in Ontario). Theprocess of obtaining a Letter of Request from the Ontario court and having it enforced by an American court is at minimum a twostageprocess and can be cumbersome. Additionally, if the witness already has been discovered in the U.S. action, there is thedanger that the examination, which results from the enforcement of the Letter of Request, will be unnecessarily duplicative. Howthen can Ontario litigants access protected American discovery material without a Letter of Request?One potential avenue is intervention by a third-party in a U.S. action under Federal Rule of Civil Procedure 24(b) ('Rule 24(b)').Under Rule 24(b) foreign litigants may intervene in an American action in order to modify or challenge a Protective Order. As thereis no deemed undertaking rule in American civil procedure, where a foreign litigant intervenes in an action and successfully challengesa Protective Order, the material that formerly was protected is then able to be used in other actions.Rule 24(b) allows third-party intervention in two situations: (1) where there is a statutory right to intervene, and (2) when the intervenor'sclaim or defence has a question of fact or law in common. It is this latter form of intervention, termed permissive intervention,that is the method by which a foreign litigant can challenge a Protective Order (See Equal Employment OpportunityCommission v. National Children's Center, Inc., 146 F. 3d 1042 at 1044 (D.C. Cir.1998) [EEOC]).Permissive intervention under Rule 24(b) was the basis in two recent cases in which Canadian litigants intervened in Americanactions. The cases -- In re Linerboard Antitrust Litigation, 333 F.Supp.2d 333 (Penn.E.D.2004) and In re Vitamins AntitrustLitigation, 2001 WL 34088808 (D.D.C.2001)) -- both involved parallel (factually similar, but legally separate) class action proceedingsin Canada and the U.S. In both cases, the Canadian litigants intervened with the consent of the plaintiffs in the Americanactions; the intervention was allowed in the former case, and would have been granted in the latter, but for an issue related to judicialefficiency, which will be discussed under the exercise of discretion below.Satisfying the Rule 24(b) testIn determining whether a Protective Order will be modified through permissive intervention under Rule 24(b), the court must: (1)determine whether the moving party meets the standard for permissive intervention, and (2) exercise discretion consideringwhether permissive intervention would prejudice the original parties to the protected action.Meeting the standardThere are three criteria for permissive intervention under Rule 24(b): (1) an independent basis for subject matter jurisdiction; (2) atimely motion, and (3) a claim or defence that shares a common question of law or fact with the action in which intervention issought. In general, these requirements are to be construed liberally, "with all doubts resolved in favour of permitting intervention."Further, in the context of intervening to challenge a protective order, the criteria should be applied flexibly (EEOC, supra at 1047).In this latter context, the first two criteria (independent basis for jurisdiction and timeliness of motion) have little impact on the final(Continued on page 10)VOLUME 18, NO. 1, SUMMER 2006 9
Page 1 and 2: The Advocates’E-BriefVol. 18, No.
Page 3 and 4: The Advocates' Society2006 - 2007EX
Page 5 and 6: Fred S. Fischer,Doane Phillips Youn
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Page 15 and 16: The Supreme Court of Canada Ruleson
Page 17 and 18: MEMBER NEWS: Who’s Doing WhatAtto
Page 19: New Civil CourtFacilities Open© Th

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